Flat Lake in Winter

by Joseph T. Klempner

  “May I respectfully request that the handcuffs be removed from Mr. Hamilton while he’s before the court?”

  “Who are you?” the judge asked.

  “My name is Matthew Fielder. I’ve been called in by the Capital Defender’s Office to represent Mr. Hamilton.”

  “Would you like an opportunity to speak with him?”

  “That won’t be necessary,” Fielder said. “I’ve already done so.”

  Judge Summerhouse rose out of his seat, though the act failed to add much in the way of elevation. “Who authorized you to do that?” he demanded.

  Fielder immediately recomputed his batting average at .667. He briefly considered mentioning Dot Whipple’s acceptance of his Notice of Appearance, or the accommodating trooper’s providing him access to the pen area, but thought better of it. From what he saw of the judge, he knew he was going to need all the friends he could find. He wasn’t about to give up anyone who’d been nice enough to have helped him.

  “Nobody,” he said. “I thought I could save the court a bit of time by speaking with my client before you took the bench.”

  “Mr.-”

  “Fielder.”

  “-Fielder, I don’t know where you’re from, or how they do things there. But the way things work around here, you’re not this man’s lawyer until I assign you. Right?”

  “Right.”

  “And until you’re his lawyer, you’re not authorized to speak with him. Right?”

  “Right.”

  “Now, you want me to assign you?”

  “Yes, Your Honor.”

  “Okay,” the judge said. “You’re assigned.”

  “Thank you.”

  “And don’t roll your eyes like that!”

  “Sorry, sir.”

  “Now, what can I do for you, Counselor?”

  “I’d like the handcuffs removed from my client,” Fielder said.

  “Denied.”

  The tone of the proceedings pretty much followed that pattern. Gil Cavanaugh announced that he was prepared to convene a grand jury and present his evidence to it without delay. Fielder handed Cavanaugh a letter announcing his desire to have Jonathan testify at the grand jury. Then he asked for an adjournment to consider whether he really wanted to do that, and, if so, to prepare for it. Judge Summerhouse reminded Fielder that the defendant had a right to be released if a grand jury hadn’t voted an indictment against him within six days of his arrest. Fielder offered to waive that provision of the law and consent to extending it to thirty days. The judge said he didn’t know if he had the power to do that. Fielder pointed out that, under the statute, the period could be extended for “good cause,” which certainly included the defendant’s consenting. Cavanaugh announced that he didn’t care whether the defendant consented or not, or whether the period was extended thirty years; he was going to get an indictment the following day.

  “So, now, does your client want to testify at the grand jury?” Judge Summerhouse asked.

  “I’ve served written notice that he does,” Fielder replied. “But the statute requires that we be given a reasonable time to prepare.”

  “So take your time,” the judge said. “Take all day, if you like.”

  “All day?” Fielder tried to keep his eyes from rolling again. “I met my client a half an hour ago,” he said. “I don’t even know if he’s competent to testify at this point.”

  The judge was ready for that one, too. “Are you asking for a fitness examination, under Article Seven-thirty of the Mental Hygiene Law?” he asked.

  “Not at this point,” Fielder replied. There was no way he was going to give some court-appointed psychiatrist or psychologist access to Jonathan at this early stage.

  “What does that mean, ‘Not at this point’?” the judge wanted to know.

  “It simply means that I am not now asking for a Seven-thirty examination.”

  By this time, the judge appeared to be approaching his boiling point. “Mr.-”

  “Fielder.”

  “-Fielder, are you familiar with the expression, ‘It’s now or never’?”

  Fielder muttered something under his breath about being familiar with a song of that name, but the only word the judge was able to pick up was “Elvis.” “What did you say?” the judge demanded.

  “Nothing, Your Honor.”

  The judge turned to the court reporter. “What did he say?” he asked her.

  “I’m afraid I missed it,” she said.

  Another friend, thought Fielder. Back up to .750.

  The judge turned back to Fielder. “Are you requesting an immediate fitness examination? Yes or no?”

  “No.”

  “Do you understand that by saying no, you forever waive such an examination.”

  “I understand,” Fielder said measuredly, “that that is your ruling.”

  “And one more thing, Counselor.”

  “Yes, Your Honor?”

  “Don’t ever wear those boots in my courtroom again.”

  Since the sixth day following the arrest would fall on a Saturday, Judge Summerhouse put the case over until Friday, September 5, in order to give Cavanaugh an opportunity to convene his grand jury and get his indictment. Jonathan Hamilton was remanded without bail.

  DEATH IS DIFFERENT.

  Those three words, to which Fielder had first been introduced at Death School, have come to form the mantra of the capital defender. When the state makes the decision to kill, that decision immediately and fundamentally transforms the nature of the process from an ordinary one to an extraordinary one. According to some advocates of the death penalty, the transformation arises out of a distinction that is both morally misguided and legally unnecessary, a mistake responsible for the many long, and seemingly endless delays encountered before the meting-out of a punishment that is rooted in biblical tradition, has been authorized by the legislature, approved by the governor, sanctioned by the courts, and continues to be supported by a sizable majority of the public. Nonetheless, this transformation from the ordinary to the extraordinary is recognized by the courts, including a Supreme Court that, even as it has upheld capital punishment against challenges that it is inherently “cruel and unusual,” has insisted that, before an execution may be carried out, exacting standards must be adhered to at every step of the way, from arrest to execution. And in determining on a case-by-case review whether those standards have been met, the justices have time and again taken note of the extreme and irrevocable nature of death as punishment, and have fashioned new yardsticks to measure compliance, adding terms like “heightened due process” and “strict scrutiny” to the lexicon of judicial analysis.

  Exactly when word of this distinction - that death is indeed different - found its way to Cedar Falls, New York, is a bit unclear. As the only sitting judge in the county, Arthur Summerhouse had almost certainly been invited to at least one of several training sessions conducted by the Capital Defender’s Office as early as the summer and fall of 1995. He will not say if he actually attended or not, and the records of those judges who did can no longer be located.

  But by the time Matt Fielder knocked on the door to the judge’s chambers - which was somewhere around two-thirty in the afternoon of the same day as the initial court appearance - he found a somewhat changed man. Perhaps the difference was no more than the one that exists between the public Arthur Summerhouse and the private one: Those who know the judge are quick to point out that as feisty and difficult as he can be on the bench, once out of his robes he is friendly and indeed quite charming. It is also possible that the five-hour interval had provided the judge an opportunity for reflection, giving him sufficient time to realize on his own that it would be prudent to accommodate some of Fielder’s more reasonable concerns. But rumors persist that it was neither of these factors that was responsible for the change, so much as an intervening act: the placement of a private phone call by Judge Summerhouse to a colleague in Rochester who had sat for a time on a capital case the year before
until it had been resolved by the defendant’s acceptance of a plea offer to life without the possibility of parole. This colleague, who does not deny the conversation, but has insisted that his name be withheld, appears to have imparted the considerable benefits of his “learning curve” to Judge Summerhouse, explaining in no uncertain terms that the idea behind the game was a simple one: Whenever in doubt, you give the defense pretty much everything it asks for. At the same time, you help out the prosecution only in those ways that aren’t too obvious and heavy-handed. What you’ll end up with is a “clean” conviction and death sentence - one that will be upheld on appeal, all the way up to and including the Supreme Court, where it’s undoubtedly going to wind up, sooner or later.

  By the time Fielder emerged from his meeting with the judge, he was clutching a handful of signed and sealed orders, granting him the assistance of various experts - a private investigator, a mental-health professional, a mitigation team, and a consulting pathologist - all of whom would eventually be reimbursed with state funds. He also had authorization to obtain a typewritten transcript of the morning’s court proceedings. This last item would perform a dual function: The transcript itself would be used as an exhibit to be attached to motion papers the defense would be submitting at a later date. But beyond that, the very act of Fielder’s obtaining it served notice upon the court that every ruling it made, and every application it denied, would be collected, scrutinized, and preserved - initially for the benefit of the defense, but ultimately for review by appellate judges in the event of a conviction, and particularly in the event of a death sentence.

  With the newly signed orders in hand and the barest suggestion of a smile on his face, Fielder took a short walk around the corner of Maple Street to the building’s annex, which for nearly 100 years has housed the Ottawa County Detention Facility, better known as the Cedar Falls jail.

  It was time for a sit-down visit with Jonathan Hamilton.

  AT THE SAME TIME that Matthew Fielder was preparing for his first serious interview with his client, across Main Street, in the Harriman Office Building - begrudgingly named in honor of a member of the opposition party that had funded its construction some forty years earlier - Gil Cavanaugh was assembling his team of assistants and investigators for a meeting to discuss what evidence the prosecution would be presenting to a grand jury the following day.

  With no regular grand jury in session, Cavanaugh had already notified the County Commissioner of Jurors to assemble a panel for nine o’clock the following morning. The County Commissioner of Jurors was actually nothing more than a title, a second hat - and there were three or four more on the rack after that - donned from time to time by the County Clerk, Dot Whipple. She had been on the phone since noon, doing her best to round up thirty or so registered voters, from whom Judge Summerhouse would select twenty-three to comprise a special grand jury, which in turn would hear the prosecution’s evidence the following day. The procedure would later come under attack by Matt Fielder, who would demand a list of the grand jurors, names - normally kept secret - so he could ensure that none of those who had voted to indict Jonathan Hamilton would wind up on the jury eventually selected to try him.

  Cavanaugh knew that the likelihood of the defendant’s testifying at the grand jury was so slim that he could discount it altogether. There was simply no way Fielder was going to expose his client to cross-examination at this early stage of the case. There is no judge present in a grand-jury room to oversee the proceedings; the district attorney assumes the dual role of prosecutor and “legal advisor” to the jurors. The function of the defense attorney is narrowly circumscribed: Counsel may be present only during the testimony of the defendant, and only as a silent observer. Finally, the rules under which a grand jury deliberates are very different from those governing a trial jury: Instead of the strict “proof beyond a reasonable doubt” standard required to convict a defendant, only “reasonable cause” need be established to indict him; and whereas a trial jury must reach a unanimous verdict before it can convict, a mere majority - twelve out of twenty-three - is sufficient to indict. It is, therefore, little wonder that we are left with the oft-repeated phrase, “A grand jury will indict a ham sandwich if asked to.”

  What all this meant to Gil Cavanaugh was that however abundant his evidence against Jonathan Hamilton might be, he had no need – and, therefore, absolutely no desire - to present more than a bare minimum of it to the grand jury. And, knowing that the defense would eventually be entitled to a transcript of the testimony of any trial witness who had appeared before the grand jury, Cavanaugh, like any good prosecutor, would want to call as few witnesses as possible, ask them the smallest number of questions necessary, and restrict even those questions to the highly suggestive (or “leading”) variety, ones that could easily be answered with a simple yes or no: “Now, is it a fact, Officer, that the defendant appeared to have blood on his forehead when you first observed him?”

  Gathered with Cavanaugh in his office that afternoon were two assistant district attorneys, a paralegal, and four investigators from the state police - Deke Stanton, Hank Carlson, Gerard LeFevre, and Everett Wells. Stanton and Carlson, of course, had been the first officers on the scene, and it was Stanton who had done the initial investigation, claimed to have elicited an oral confession from Jonathan Hamilton, and subsequently arrested him. Wells and LeFevre had arrived at the scene first thing Tuesday morning, carrying a search warrant that had been signed by Judge Arthur Summerhouse in his living room late Monday night. While the judge, the prosecution, and the defense had been busy arguing in court the following morning, Investigators Wells and LeFevre had driven to the Hamilton estate, entered the cottage in which Jonathan had lived, and gone over every inch of it, taking photographs, collecting blood, hair, and fiber samples, and seizing physical evidence. They had returned to Cedar Falls and gone straight to the meeting at Cavanaugh’s office with the fruits of their labors. It would take some time for the photographs to be developed, enlarged, and catalogued. The samples would have to be submitted to various crime and forensic labs for analysis and comparison. But the items of physical evidence would pay much more immediate and obvious dividends. Topping the list were two badly blood-stained towels, retrieved from behind a vanity compartment underneath the sink in Jonathan’s bathroom. Wrapped in one of the bloody towels was a hunting knife. It had a genuine staghorn handle, and a five-inch tempered-steel blade that was smooth near the point and serrated near the handle. It appeared to have been wiped clean of any blood or fingermarks.

  Cavanaugh and his team met for the better part of two hours. The bare-bones presentation they finally settled on consisted of the calling of four witnesses: Investigator Deke Stanton, for the arrest and confession of Jonathan Hamilton; Medical Examiner Frances Chu, to describe the wounds sustained by the victims, the probable time of death, and the nature of the weapon that appeared to have been used; Investigator Gerard LeFevre, to introduce the knife and describe the circumstances of its recovery; and one civilian witness, Bass McClure, to relate his early-morning phone call from the defendant, and his subsequent discovery of the bodies.

  ACCORDING TO ENTRIES in the visitor’s log book, Matt Fielder’s first sit-down interview with Jonathan Hamilton lasted a little bit over two hours. Yet by his own admission, Fielder learned very little of substance during the meeting, and later calculated that if he were to add up the actual words said, they would have filled up less than a half an hour, all told. He’d come to think of the experience, in fact, as something like watching a ball game on television: You got about three minutes of commercials for every minute of actual play. With Jonathan, you got about three minutes of silence for every minute of conversation.

  To begin with, Jonathan’s demeanor was such that Fielder believed him to be in a virtual state of shock. He seemed aware of his surroundings, but barely so. The word that keeps coming back to Fielder, even today, is bewildered. Having already noted Jonathan’s apparent inability to project into the
future beyond the very day and night in which he found himself, Fielder was now struck by the flatness of Jonathan’s affect - how inappropriately he was reacting to the fact that, rightly or wrongly, he’d just been arrested for, and accused of, hacking his grandparents to death.

  Fielder asked Jonathan a lot of questions and, eventually, managed to extract a fair amount of information. But the questions Fielder asked, and the answers Jonathan supplied, were almost entirely limited to the subject of Jonathan’s background - his childhood, his family life, his schooling, his growing-up. For example, Fielder asked what, if anything, Jonathan did for work and during his spare time. He wanted to know if Jonathan had ever been in trouble before, and, conversely, if he had any accomplishments he could list, things he was proud of. Fielder knew he was going to need all this information sooner or later. For one thing, it was easier to get Jonathan to talk about his past than it was to get him to talk about why he suddenly found himself sitting in jail. And Fielder knew that just getting Jonathan to talk was important in itself. As much as anything else, a sense of trust needed to be established. Talking about the crime could wait. The one thing they were going to have plenty of was time.

  To a layman, the notion that Fielder would avoid pressing his client at the earliest possible opportunity on the ultimate issue - that of guilt or innocence - may sound strange indeed. But there are good reasons for this strategy, and Fielder was mindful of them. The defense lawyer, and particularly the court-appointed defense lawyer, learns to exercise caution in the early days of his relationship with his client. Asking a defendant right off the bat whether he’s guilty or innocent is something like starting out a blind date with the question, “So, have you slept with other people?” When he first meets the lawyer who’s been sent in to represent him, the defendant is naturally wary. Who is this guy? he’s wondering. Who’s paying him? How do I know he’s not part of the same bunch of people who are trying to put me away? After all, they seemed friendly, too, and told me it would be in my best interest to tell them everything. And, if he’s somehow able to get beyond that initial paranoia and believe that his lawyer’s really on his side, his next thought is still likely to be, If I tell him I’m guilty, there’s no way he’s going to fight for me the same way as if he believes I’m innocent - a fear that’s not too difficult to understand, and probably even well-founded, in some cases. As a result, many defense lawyers, when dealing with a defendant who certainly seems to have committed the crime he’s charged with, will never get around to posing the ultimate question, Did you do it? Perhaps here we are witnessing the original application of the “Don’t ask, don’t tell” policy.